047-NLR-NLR-V-43-WEERASINGHE-v.-SAMY-CHETTIAR.pdf

PPEAL from a conviction by the Municipal Magistrate of Colombo.
S. N. Rajaratnam, for the accused, appellant.
H. W. R. Weerasooriya, C.C., for the complainant, respondent.
Cur. adv. vult.
November 21, 1941. Howard C.J.—
In this case the appellant was charged with being the driver of a single-bullock cart and driving the same on a public highway whilst seatedinside the cart, in breach of section 5, chapter 6, of the Municipal by-laws,and thereby committing an offence punishable under rule 2, chapter 25,of the Municipal by-laws.
The first point taken by Mr. Rajaratnam on behalf of the appellantis that the by-law which the appellant is charged with contravening isno longer in force. It appears that the by-law was made under theprovisions of Ordinance No. 9 of 1901. The Ordinance was repealed byOrdinance No. 4 of 1916. Section 56 (1) of the 1916 Ordinance kept allby-laws alive. Chapter 155, however, which appears in the RevisedEdition of the laws omits section 56. I am of opinion that there is noforce in this contention. Section 12 of the Interpretation Ordinanceprovides that when any rules made under any Ordinance which hasbeen repealed are kept in force by the repealing Ordinance, such rulesshall be deemed for all purposes to have been and to be made under the
HOWARD C.J.—Weerasinghe v. Sarny Chettiar.
191
corresponding provisions of such repealing Ordinance and shall be enforce-able as if they had been so made. Having regard to the provisions ofthat section, the rules made under Ordinance No. 9 of 1901 are to bedeemed for all purposes to have been made under Ordinance No. 4 of1916. With regard to the effect of the omission of section 56 ofOrdinance No. 4 of 1916. from chapter 155, I am of opinion that thesubsidiary legislation made under that Ordinance, that is No. 4 of 1916,is kept alive by virtue of section 11 of chapter 1. This section, as theresult of an amendment made by section 3 of Ordinance No. 16 of 1939,was repealed by the following provisions : —
“ All subsidiary legislation, all appointments and acts made or doneunder any legislative enactment included in the revised edition andin force on the date appointed by the Governor under section 10 shallcontinue in force until otherwise provided ; and references in anysuch subsidiary legislation to the legislative enactment under whichsuch subsidiary legislation is made, or to any other legislative enact-ment, shall, where necessary and practicable, be deemed to apply tothe corresponding legislative enactment in the revised edition.”
By reason of this provision the by-law in question is kept alive althoughsection 56 of Ordinance No. 4 of 1916, has been omitted from chapter 155.For the reasons I have given I am of opinion that the by-law is in force.
The second point taken by Mr. Rajaratnam is that a person whocontravenes the by-law in question does not commit an offence punishableunder rule 2, chapter 25, of the Municipal by-laws, Mr. Weerasooriyadoes not contest this point, but maintains that, although no offence wascommitted under rule 2 of chapter 25, an offence was committed underthe general section with regard to contraventions of the Ordinancecontained in Chapter 155. This provision has replaced section 21 ofOrdinance No. 4 of 1916, which in its turn replaced section 21 of OrdinanceNo. 9 of 1901. I agree with Mr. Weerasooriya’s contention that anoffence was committed under section 19 of chapter 155. It is truethat the attention of the appellant was not directed to the fact that hecommitted an offence under this particular section of the law. On theother hand, I do not think that he has been prejudiced in any way bysuch failure to direct his attention to the right section. I think the caseis met by section 171 of the Criminal Procedure Code.
A further point has been raised by Mr. Rajaratnam that the by-law inquestion is ultra vires as being unreasonable. I am not prepared tohold that this by-law was unreasonable inasmuch as, although hardshipmay be caused, one can see the intention behind the enactment of such aby-law.
For the reasons I have given I think that the Magistrate was correctin coming to the conclusion that the appellant had contravened theby-law.
I vary the order by recording that instead of the offence beingpunishable under rule 2, chapter 25, of the Municipal by-laws it ispunishable under section 19 of chapter 155, The appeal is dismissed.
Appeal dismissed.